by Henry Redman, Wisconsin Examiner
January 30, 2024
A Calumet County judge on Tuesday ruled that the Wisconsin Department of Natural Resources (DNR) has the authority to require factory farms, also known as concentrated animal feeding operations (CAFOs), to obtain permits under its wastewater discharge program.
The judge, Carey Reed, ruled against two CAFO lobbying organizations who had brought the lawsuit with the assistance of Wisconsin Manufacturers and Commerce, the state’s largest business lobby. The two CAFO groups are themselves led by factory farm operators who have been cited by the DNR for contaminating the state’s water through manure spills.
In their lawsuit, the two groups, Venture Dairy Cooperative and the Wisconsin Dairy Alliance, argued that the state did not have the authority to require permits under the DNR’s Wisconsin Pollutant Discharge Elimination System (WPDES) program. The program requires any entity that discharges pollution into the state’s waterways to obtain a permit.
An application for a WPDES permit must be made within 90 days of becoming a factory farm or expanding. The permits last for five years before they must be renewed. CAFOs — factory farms with more than 1,000 “animal units,” which is equivalent to about 700 milking cows — are also required to submit plans to the DNR for how they intend to manage the manure created on the farm.
If a manure spill occurs, the permit requires the owner to notify the agency and is responsible for the cleanup. The permits also need to be reapproved whenever an operation is planning to expand and every permit application is subject to a public comment period.
A manure spill can cause harmful substances such as nitrates, E. coli and phosphorus to enter the state’s ground and surface waters — potentially making drinking water dangerous to consume and causing fish to die.
Two years ago, the Wisconsin Supreme Court ruled that the DNR had the authority to use the WPDES permits to impose conditions on factory farms as a way to control their environmental effects. In recent years, WMC has filed several lawsuits seeking to weaken the DNR’s authority and undermine its ability to regulate water pollution across the state.
The lawsuit argued that having to comply with the “time-consuming, costly process” of obtaining a permit that imposes “substantial costs and regulatory burdens” on the farms, is against the law because of two previous federal court decisions in 2005 and 2011 about the U.S. Environmental Protection Agency’s own permit requirements for polluters.
During a motion hearing on Tuesday, the attorney for the groups argued that the problem with the permit requirements is that they put too much liability on the farms.
“The CAFO operators shouldn’t be required by the DNR to get a permit if they’re not discharging, but maybe the equally or perhaps more important point is they shouldn’t be exposed to this liability if they don’t have a permit,” the attorney, Scott Rosenow, said. “So that’s not just if they choose to get rid of their permit. It’s also if a CAFO operator just accidentally fails to renew their permit in time or DNR drags its feet and just doesn’t really issue a permit in time. Then what happens is that CAFO is automatically liable for $25,000 of daily fines for operating just because their permit accidentally lapsed. So it’s not just about whether they can get rid of their permits. It’s about what liability are they exposed to if their permit lapses.”
But the attorneys for the DNR and for conservation groups who intervened in the case argued that the CAFO groups hadn’t proven that farms are actually harmed by the permit requirements and that the lawsuit was dealing entirely in hypotheticals because they hadn’t pointed to any operating CAFOs that aren’t discharging waste into the local ground or surface water.
“Even in the couple of hypotheticals that attorney Rosenow just offered on potential liability, I think it’s important to note that again, clearly missing from any of that was a point on whether or not there exists a CAFO that isn’t discharging,” said Adam Voskuil, an attorney for Midwest Environmental Advocates who was representing the Wisconsin Farmers Union.
Reed ultimately found that the state statutes and previous court precedents gave the DNR authority to require permits.
After the ruling, conservation groups celebrated the decision as a win for clean water.
“We are pleased that the circuit court upheld longstanding clean water protections and rejected this reckless lawsuit.The court correctly found that the state has the explicit legal authority to protect Wisconsin’s water resources.The claims advanced by Wisconsin Manufacturers & Commerce and their clients would have exposed rural Wisconsinites and small family farmers to illegal manure discharges, polluting their drinking water and Wisconsin’s rivers and lakes.”
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